• Custody of 5 and half year old

I'm 30 year old woman with 5 and half year old son. Completed 7 yr of love marriage. 
From beginning it was not successful marriage due to caste problem, trust factor and money demands.Because of caste problem my in laws never wanted me to stay on rent from initial but I wanted joint family despite of many try they never agreed and after marriage we started staying apart.They gave me reason that my husband should learn responsibilities but later from my husband I came to know they told him that I wanted to stay away. While fixing marriage there was indirect demand of gold and other house hold things as we were going to stay alone.Husband took personal loan for marriage for which I was not ready I wanted simple marriage with less people as I knew my husband never had any kind of saving. My father was ready to layoff his loans but his mother demanded those money to layoff his big brother's share market loan. This was the time picture was clear this marriage was only for money and they never wanted me in their family as daughter-in-law. Whenever I tried to explain my husband about what his family trying to do there was only violence.
After planning kid I thought situation will change. I was away from my husband for 6 month before conceiving. In this period I had Smooch with one of my friend which my husband came to know after kid.I accepted. But this was single reason he wanted all time to harass me.Cause he knew about his family but still hitting me was his proud now that smooch was reason to blame me for everything.

He always abused me my family. Harras them.Hit my father who is 65 year old. But wanted to blame me for everything. Now I'm filing for petition I just wanted to know about future thing. He still doubts still abuse still violence.he just wanted to proove me characterless. Last year also somewhere I got involved but it got over long back. But can he track down whatsapp chats or callings or msg to prove me wrong and take my kid from me? My main concern is my kid. Nothing else.
Asked 6 years ago in Family Law
Religion: Hindu

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15 Answers

1) welfare of child is paramount consideration

2) you should get custody of your child

3) delete your what’s app chats , messages

4) husband cannot track down your chats or messages

5) file for divorce on grounds of mental cruelty

6) seek alimony from husband and maintenance for your child

Ajay Sethi
Advocate, Mumbai
94520 Answers
7485 Consultations

5.0 on 5.0

Hi

Let me make things clear step by step.

1. They hitted you and your father for that file a criminal complaint against them under 323 IPC

2. File a divorce petition and demand alimony during settlement.

3. File for your maintenance under section 125crpc and also for the maintenance of your child.

4. File a child Custody petition under Guardianship and Wards Act for the full custody of your son.

When you will file these petitions and complaints they will be on their knees and will pray in front of you for the settlement of issue at that time if you want to take divorce then ask them for mutual consent divorce and one time alimony of the amount which you think is sufficient for your and your child future.

If you don't want to take divorce from your husband then file a section 9 rcr petition 2 Pound your husband legally to give you all credits of a wife and behave like a good husband.

Consult a good family lawyer of your locality I hope this should work out for you and for the betterment of your and your child future.

Thank You

Rahul Jatain
Advocate, Rohtak
5365 Answers
4 Consultations

4.8 on 5.0

Hi,

The Hindu Minority and Guardianship Act section 6 defines the Guardianship and clearly says that a child up to the age of five years will be in custody of mother. So the custody of five and half yrs son will be with you only if the husband has no income to support the kid.

And at the same time if both of you are living separate and there is maintenance allowed to you and son which will be applied again with the age limit.

Please look the matter very closely before decide your nest move.

Good luck!!

Vimlesh Prasad Mishra
Advocate, Lucknow
6852 Answers
23 Consultations

4.9 on 5.0

Hello,

1) Have you filed a petition for divorce? Your query seems not very clear. If you have , on grounds of cruelty both mental and physical you can succeed in obtaining divorce on basis of what you have described.

2) He can and will certainly bring up the instances of your having intimacy as you referred to in your query in his defence and resist your petition and to avoid the liability of having to pay a maintenance.

3) As far as the custody of the minor son aged 5 and a half years is concerned, the court will pass an order on the merit as to which of you would be best equipped to take the best care of him. The other spouse will be granted rights of visitation. You may also be able to arrive at a decision to obtain divorce through a mutual consent and also make aseasoned decision about custody with the aid and mediation of the court.

S J Mathew
Advocate, Mumbai
3545 Answers
175 Consultations

5.0 on 5.0

Hello mam , the legal remedies that you have are , 1) lodge a FIR under 498A IPC for dowry demand and cruelty 2) file a complaint of domestic violence in court 3) file for maintanace under 125 Crpc for yourself and chid .. In levelling charges of adulterous character , your husband needs to establish sufficient evidence of physical intimation with a person .. Merely messages does not establish adultery .. Kindly elaborate about the messages that he has ?? Does he have the chat backups or pictures ??

Hemant Chaudhary
Advocate, Gurgaon
4630 Answers
67 Consultations

4.9 on 5.0

firstly delete all the chats from your phone, dont save it anywhere as it can be traced. Secondly you can file divorce petition, maintenance, custody of child, and also domestic violence case.

You can file fir against him alleging domestic violence and also keep proof of the same, try recording if he is abusing you, and if you have bruise on your body click pictures, record conversation to make evidence.

you can also file dowry case, in police station there is separate cell for ladies, so dont worry

Varnika Singh
Advocate, New Delhi
327 Answers
2 Consultations

4.9 on 5.0

1. If the child is in your custody then instead of filing a petition for child custody you may file a suit for permanent injunction to restrain him from taking the child out of your custody unlawfully. If he later on files a petition for child custody then contest it.

2. Watsapp chat can certainly be tracked down through the service provider if there is a court order to this effect. However, even if he can prove your extra marital affair it does not disentitle you to claim child custody,

Ashish Davessar
Advocate, Jaipur
30763 Answers
972 Consultations

5.0 on 5.0

Book your husband and in-laws for they have meted out violence(domestic) to you, besides cruelty which is punishable under section 498a IPC.

Thus, lodge a complaint before the CAW(Crime Against Women) Police Cell in your city and report to the police all the the atrocities that you have been facing.

If the child is not your custody, file a petition to seek the custody of your child by way of making an application under the provisions of the Guardians and Wards Act.

If the child is in your custody, do not part away with the child's custody.

Vibhanshu Srivastava
Advocate, Lucknow
9588 Answers
303 Consultations

5.0 on 5.0

The kid can not be taken away from you on this ground alone. Moreover whats app chat are not conclusive prove of evidence.

Also the while deciding custody of child the welfare of the child will be of para marriage importance.

Are you not living together right now? If not, then is the child in custody of father?

Regards

Anilesh Tewari
Advocate, New Delhi
18077 Answers
377 Consultations

5.0 on 5.0

Whats app details can not be provided the service provider since they are end to end encrypted and also the content of the messages can not be told by the service provider and if he is alleging something then he has to prove it.

No this does not in any way effect your right to fight the case.

Regards

Anilesh Tewari
Advocate, New Delhi
18077 Answers
377 Consultations

5.0 on 5.0

Q.But can he ask court permission to get call details or msg whatsapp details from service provider? Does court grant permission to such violent person?

And. The Court will be very hesitant to do this.Hence, you should not be worried about this.

Q.Last relationship was only because of harassment at home. Does that effect my fight in court?

Ans. No. In any case you will refuse the allegations levelled at you that you were in a relationship at any time in the past.

Vibhanshu Srivastava
Advocate, Lucknow
9588 Answers
303 Consultations

5.0 on 5.0

Husband can obtain call details from service provider

Call records do not prove adultery

If you have deleted those what’s app messages husband would not be able to obtain those details

Ajay Sethi
Advocate, Mumbai
94520 Answers
7485 Consultations

5.0 on 5.0

firstly if he accuses you of adultery he cannot charge you as adultery is an offence only against the person with whom you had affair and not against you, so your husband cant charge you of adultery.

And you have all grounds for divorce like dowry, violence, even if he shows in court that you are bad character(this is normal in divorce cases/ he will bring out something whether it is done by you or not) . ultimately in the end you will get divorce and also apply for maintenance. if you strongly believe you dont want to be with him, act smartly, and higher a decent lawyer.

Varnika Singh
Advocate, New Delhi
327 Answers
2 Consultations

4.9 on 5.0

If you have decided to leave his company by dissolving the marriage, it is your decision, you can decide about it based on the prevailing circumstances at your end.

You can file a contested divorce case on the grounds of cruelty.

About child custody, you dont have to be worried about the whatsapp messages or any other social media messages to prove his allegations, because they can be disproved if proper procedure to establish the genuineness of such messages have not been adopted, moreover smooch is not a big offence or an act of adultery to blame a woman as characterless.

This can fought back properly in the trial proceedings.

You keep the child with you and let him file a child custody case and fight on it.

You secure all the evidences and also fight back on merits.

T Kalaiselvan
Advocate, Vellore
84711 Answers
2172 Consultations

5.0 on 5.0

1. Unless he can convince the court that the content which he wants to obtain from the service provider is quintessential to the just outcome of the case the court will not pass an order to this effect.

2. Adultery does not affect your right to claim child custody.

Ashish Davessar
Advocate, Jaipur
30763 Answers
972 Consultations

5.0 on 5.0

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